WASHINGTON _ The Supreme Court on Monday allowed parents to press ahead with a lawsuit against a Sonoma County sheriff's deputy who shot and killed their 13-year-old son who was walking on a sidewalk carrying a plastic pellet gun.
The justices without comment or dissent denied the county's appeal seeking immunity for the officer. The court's decision clears the way for the parents' wrongful-death suit to go before a jury.
In recent years, the high court has repeatedly blocked lawsuits against law enforcement officers for using excessive force, but it refused to do so in the case of Gelhaus vs. Lopez.
The shooting of Andy Lopez on an October afternoon on a sidewalk in Santa Rosa sparked protests and rallies five years ago. The 5-foot-3 boy was seen carrying a plastic gun that Deputy Erick Gelhaus, an Iraq war vet, thought might be an AK-47.
He and another deputy were on patrol when they spotted the boy and pulled their car behind him. Gelhaus jumped from the car, crouched behind the door and shouted: "Drop the gun."
As Andy turned toward him, Gelhaus fired eight shots and killed him.
No charges were brought against the deputy, but the boy's parents sued him, alleging an excessive use of force and a violation of the 4th Amendment's ban on "unreasonable seizures."
Federal law since 1871 has authorized suits against state and local officials who violate someone's constitutional rights. But the Supreme Court has said police have a "qualified immunity" from such claims.
The justices in recent years have expanded the scope of this immunity and said suits may go forward only if the court itself has issued a decision that "squarely governs" the situation that the officer faced.
A federal judge in Oakland refused to grant immunity to Gelhaus, however, and would have allowed a jury to decide whether his use of deadly force was unreasonable. The 9th Circuit Court of Appeals upheld that decision last year in a 2-1 decision.
Judge Milan D. Smith said the officer did not appear to face danger or an immediate threat to himself or others.
"Andy was walking normally ... in broad daylight in a residential neighborhood," and did not display "aggressive behavior," the judge wrote. Moreover, the deputy "deployed deadly force while Andy was on the sidewalk holding a gun that was pointed down at the ground," and "without having warned (him) that such force would be used," he said.
In a pretrial hearing, Gelhaus had testified that the boy's gun was being raised when he fired. In dissent, Judge Clifford Wallace of the 9th Circuit said the suit should have been dismissed because the officer "reasonably believed that Andy was carrying an AK-47."
In their appeal, lawyers for Sonoma County cited a ruling two months ago in which the justices blocked a suit in a police shooting case from Tucson.
In that case, Kisela vs. Hughes, the justices by a 7-2 vote reversed the 9th Circuit and threw out a lawsuit against an officer who shot a woman who was standing in her yard holding a large kitchen knife.
The officer came on the scene with two other officers and thought the woman was a threatening another woman who stood six feet away. The other woman later testified she lived with the shooting victim and did not feel threatened.
The high court in that case ruled the victim could not sue because no case "squarely governed" the situation.
